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Goodbye, Privacy

The history of inBloom, Inc., illustrates how foundations and other private interests use government power to support private profit-making activities related to public schools. inBloom is collecting a massive education database including sensitive and personally identifiable information, to be stored in “the Cloud.” The project has the financial support of the Gates and the Carnegie Foundations and of Rupert Murdoch, whose Wireless Generation company stands to benefit.

In 1974 the Family Educational Rights and Privacy Act (FERPA) became federal law. FERPA limited the authority of school officials to release personally identifiable information about any student, without student or parental consent.

On April 8, 2011 the US Department of Education initiated a proposal to amend the regulations interpreting FERPA. The proposed regulatory change was put out for Notice and Comment as required by the Administrative Practices Act. The Department of Education issued the final amended regulations on December 2, 2011 and they took effect on January 3, 2012.

The amended regulations provided a new definition for three key statutory terms. Under the new definitions, detailed information about students, along with individual student ID numbers or other unique personal identifiers, may be disclosed “nonconsensually,” by “an educational agency or institution” with very little constraint. The changes essentially gutted FERPA and removed just about every vestige of parental control over the use and release of personally identifiable information in school records.

Whether the Department of Education had the authority to make these changes will be decided by federal judges. In accord with administrative law jurisprudence, a regulation issued according to the process specified in the Administrative Practices Act has the force of law, although a regulation may be challenged in the courts. There is such a court challenge at present. The Electronic Privacy Information Center (EPIC) claims that a comment they filed during the Notice and Comment period was completely ignored in the amended final regulation.

Shortly after December 2011 when the amended FERPA regulations were issued, the Shared Learning Collaborative (SLC) was activated. The SLC’s five member board of trustees included two corporation officers who were affiliated with the Bill and Melinda Gates foundation, one with the Carnegie Foundation, one with the Council of Chief State School Officers, and one was a former state governor affiliated with an educational advocacy organization . SLC was disbanded in November 2012 when the nonprofit organization, inBloom, was created. inBloom, which is supported by $100 million in grants from the Gates and Carnegie foundations, inherited all of the SLC’s software development.

The massive databases that inBloom intends to create are supposed to make it more efficient for school districts to store, access and process data for educational purposes. In theory, it would become possible to tailor instruction from stored data to meet individual student needs. Databases within a district are not always able to “talk” with each other; using a common platform and infrastructure in the Cloud would remedy that problem. If all the various school databases in the nation are also in communicable format in Clouds, it would be possible to examine and collate information on a national scale.

Those enamored of technology see a wonderful world opening up. Others fear that the age of Big Brother watching is coming all too close and that data would be used to monitor schools, teachers and children without notice. The FERPA changes will allow access to educational data for commercial or other purposes without the trouble of gaining parental or student consent. After all, the public is assured, we must facilitate digitalized education to modernize American school systems. (inBloom’s CEO, Iwan Streichenberger, somewhat disingenuously noted that their [computer] platform is compliant with the Family Education and Privacy Act and that their top priority is data privacy .)

The federal regulatory process is relatively silent. In the past, parents would not have known their legal rights had been diminished. Thanks to both the rapid spread of information and the impending court challenge to the amended FERPA regulation, parents across the country were soon informed that their state or education district intended to release individually identifiable data to third parties as part of an initial tryout of the inBloom project. The records are not only to be shared with consultants to help school districts adopt modern day information technology. They may also be available to private for-profit businesses able to target sales pitches to children’s teachers and parents and to school districts. This would bring to education the intense targeted marketing based on data collected from websites and by search engines.

Concerned parents who had been voiceless in the regulatory process, have begun to organize. They are learning that they cannot “opt out” of the arrangements and they want to assert their constitutional right to direct the education of their children. They oppose the invasion of privacy: the risk of disclosure of sensitive personal information such as test scores, health status and disciplinary records. They also are opposed to commercial exploitation of their children and their participation in research projects without parental consent .

When school officials in Brooklyn held a public meeting recently, parental fears were stoked. An inBloom representative confirmed that while inBloom would not share information with for-profit businesses to the detriment of students, the school district could decide to share the information stored in the Cloud with for-profit entities. Parents were distressed to learn that inBloom could not guarantee the security of information in the Cloud, and that in their contract with the City, inBloom was absolved of responsibility for any breach of security, including hacking.

During the meeting, one parent asked whether parents of a disabled child whose name was released to third parties, could be the target of aggressively marketed for-profit special education services. When the Chancellor of the New York City schools vowed that student privacy would not be violated, his reassurances were met with skepticism by parents whose level of trust in public school officials is not high.

While parents have had nowhere near the resources, the time, or the expertise to mount effective resistance to the efforts of the foundations and the organizations supported by them, that situation may be changing. Many states have pulled back from participating with inBloom. In New York State however, while two bills to protect parent rights to privacy were passed in the Assembly, a comparable bill in the NY Senate [S4284] was held up. Concerned parents intend to keep up the pressure. Given sufficient anger, and the internet’s ability to put people in touch quickly and inexpensively, parental resistance may become a democratic counterweight to the unbridled powers of big business and huge foundations to influence public educational policies without accountability.

- Murray Levine and Adeline Levine, Buffalo

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